Netherlands Country Report

Legislation:	Act on Protecting Personal Data
Topic:	Introduction of new law
When:	1 September 2001
Where:	Netherlands
What happened:	This is a controversial regulation that incidentally leaves open plenty of space for expansion of the system of privacy protection. Thus the court is obliged to establish a directive as per the interpretation of the act, including in accordance with the developing jurisprudence of the European Court of Justice. The most significant differences as compared to the old legislation are the following: - The protection of the privacy of the citizen is reinforced because the party processing data on a person must inform the party concerned more frequently than under the old legislation. - Something new is the legal right of citizens to forbid DM companies, if they wish, to send them advertising addressing them by name. - The existing obligation of companies and institutions to report personal registration with a privacy regulation to the registration chamber is being loosened. The number of articles of information that must be reported is limited and the number of exemptions from the obligation to report is being increased. - The registration chamber is getting a new name, "College Bescherming Persoonsgegevens" (board of protection of personal data) and will have more authority with respect to supervision. In case of infringement on the Act, it can impose a fine determined by itself. In the past this was not possible. - The work method of the Board is being bound to legal behavioural rules and it will be possible to complain about the work methods of the Board to the Ombudsman.
Self regulation:	New developments
Topic:	New regulations for commercial e-mail
Who:	Consumers' organisation and Dutch Home Shopping organisation
When:	1 October 2001
Where:	Netherlands
What happened:	In the Netherlands an opt-out regulation applies with respect to sending commercial e-mail and advertising. This means that e-mail may be sent until the recipient has indicated that he does not wish to receive it. The Consumers' Union is a declared opponent of every form of opt-out. They also view clicking that one does not wish to receive e-mail to be an opt-out. Nor are the direct marketing agencies in the Netherlands united in the DMSA happy with the opt-out regulation. Mainly for pragmatic reasons. After each mailing they lose a disproportionate amount of time removing addresses from the mailing list. Recent consultation between the Consumers' Union and the Dutch home shopping organisation has led to new rules of self-regulation for commercial e-mail. In the context of these regulations, companies that are part of thuiswinkel.org may no longer send consumers unrequested e-mail when those consumers have left an address behind at a website. The consumer himself must indicate whether he wishes to receive e-mail. He can make this known by clicking on a "yes" box or a "no"-box. The "yes"-box - I would like to receive mail - may already be ticked. This is a significant concession of the Consumers' Union.
Case law:	Baby-dry
Topic:	Trademark protection for descriptive trademarks
Who:	The European Court of Justice
When:	20 September 2001
Where:	Luxembourg case no. 163/98
What happened:	On 20 September the European Court of Justice determined that Baby Dry possesses sufficient differentiating capacity to be registered as a brand of nappies. In the past the Benelux Brand Agency had refused the registration of this brand, and the lower courts confirmed this decision. They felt that Baby Dry can only be viewed as a description of an essential property of the product (keeping babies dry). According to the European legislation for brand rights, such non-differentiating signs must remain free. A single company is not to monopolise such a specification as a brand. The European Court has stated that in the decision of whether the brand has sufficient differentiating capacity one must look at the overall name. According to the Court, the combination Baby Dry is not a name, due to its 'unusual secondary meaning', that can be viewed as a normal representation of the properties of the product. According to the Court it is even a "linguistic discovery" that must be able to be protected as a brand throughout all of Europe.
Comments:	For marketers this is an important ruling because with respect to brands to be newly developed, these are often based on a reference to the characteristics of a product such as, for example, Bio-Claire, Biomild, Bodybra, Easybank and Doublemint.
Case law:	Civil court
Topic:	Trademark infringement
Who:	Vredestein / Ring 65, IER, no. 4, August 2001, page 190
When:	11 May 2001
Where:	Supreme Court of the Netherlands
What happened:	Vredestein is a bicycle tyre manufacturer. It produces a tyre with a special profile called "Perfect". It has had a model registered for this tyre as well as a word and shape brand. The defendants, Ring 65 (a group of bicycle dealers) have had a tyre with a similar profile manufactured in Taiwan. The question is whether this is infringing on the model rights and/or the shape brand of Vredestein. The Supreme Court decided that this is not the case. An interesting point in this ruling is that the Supreme Court is applying, for the first time in the Netherlands, the criterion of the European Court from the Gut Springenheide judgement, where after all it had been decided by the European Court that one must base oneself on "the probable expectations of an ordinary consumer who has received average information and has an average degree of attention for the matter". The Supreme Court considers, in the Vredestein case, that "the Court has expressed that the greater public will not automatically, but only after the advice of a professional bicycle dealer, recognise a tyre on the grounds of the Perfect profile as being from Vredestein, and that therefore the Perfect-profile does not lend itself to enable the relevant public to identify the tyre as coming from Vredestein." The Supreme Court has not yet made a final decision but is referring the case to the Benelux Court of Appeal for a question and explanation of article 12 paragraph 3 Benelux Brand Law in connection with article 12 EU Treaty. (Discrimination of Dutch holders of authors' rights in comparison to foreign holders of authors' rights).
Case law:	Self-regulation
Topic:	Good taste. Appeal in case of refusal of the ad by the media?
Who:	Dutch Advertising Standard Authority
When:	13 December 2000, file 00.0484
Where:	Amsterdam, The Netherlands
What happened:	The Netherlands' largest exploiter of space for outdoor advertising had refused the appended advertisement for the non-commercial broadcasting system KRO (Catholic Radio Broadcasting System) because they considered the advertisement to be in conflict with standards of good taste. Another exploiter of outdoor advertising did place the poster and then there was a complaint to the Advertising Code Commission. The position of the KRO that the poster did not involve any advertising because they are a non-commercial institution was rejected. In terms of answering the question of whether this advertisement should be considered to be unnecessarily harmful and/or in conflict with good taste and/or morals the Advertising Code Commission takes a reserved position, considering the subjective character of those criteria. Taking this reticence into consideration, the Commission considered the manner in which the message is presented on the posters not to be unacceptable. The Advertising Code Commission adds here, officially, that its decision does not detract from the fact that not everyone will appreciate the posters.
Comments:	A medium can refuse an advertisement without presenting its motivations for the decision. This happened in the case at hand. Thus the campaign of the KRO came to nothing at all, while in an assessment later on the Advertising Code Commission did not see the message as immoral, tasteless, or unnecessarily harmful. For TV commercials there are summary proceedings that exist for this type of case before the Board of Appeal of the Dutch Advertising Authority. This does not apply to print and outdoor advertising. Pursuant to this ruling a study was carried out as to whether such a procedure can also be commenced for outdoor advertising and/or print.